Opinion
The appellants were arrested on charges arising from seizures of over 350 kilograms of cocaine, 50 pounds of methamphetamine, 650 pounds of marijuana, firearms, and more than $1.2 million in illegal proceeds,
STATEMENT OF THE CASE
A 14-count information, filed October 31, 2008, charged appellants Rufino Acevedo, Steven Montes, Augustin Alvarez and Omar Cruz (and one other person not a party to this appeal) with some or all of the following crimes: conspiracy to commit possession and transportation of cocaine for sale (Pen. Code, § 182, subd. (a)(1));
Appellants pleaded not guilty and denied the allegations. After their motions for discovery of wiretap documentation and to suppress wiretap evidence were denied, they pleaded no contest and were convicted.
Appellants’ contentions in this appeal arise from the trial court’s denial of their motions for discovery of unredacted documents supporting the wiretaps that led to their arrests, and for suppression of the evidence resulting from the wiretaps.
The Wiretap Orders
Between November 3, 2005, and April 2006, law enforcement agencies obtained orders signed by Judges Larry P. Fidler and Curtis B. Rappé of the Los Angeles Superior Court (joined in one instance by a judge of the Riverside Superior Court) authorizing seven wiretaps involving 14 cell phones allegedly used by Montes. The orders included the magistrates’ findings of probable cause to believe that defendant Montes and others “have
The information obtained as a result of the wiretaps led to the arrest of Montes and each of the other appellants, for their participation in a drug trafficking operation headed by Montes, involving the transportation of large amounts of cocaine from Mexico to Southern California and other locations around the country.
Discovery and Disclosure of Redacted Wiretap Authorization Documentation
Following the filing of the complaint in May 2006, appellants’ counsel were provided with copies of the wiretaps’ supporting affidavits and investigative reports; however, those documents were redacted, heavily in some places, in order to conceal portions that the law enforcement agencies believed would reveal privileged official information or compromise the identity of confidential informants. The documentation that was provided to defendants consisted of a list of 40 overt acts supporting the felony complaint’s conspiracy charges, the affidavits of Special Agents Salaiz and Wilde of the California Department of Justice Bureau of Narcotic Enforcement supporting the wiretap requests, as well as six-day reports and investigative reports from the wiretaps, and letters setting forth the prosecution’s refusal to provide unredacted copies of further supporting documentation.
According to these documents, the information obtained from the wiretaps and from other methods of investigation between November 2005 and April 2006 led to seizures of 353 kilograms of cocaine, 50 pounds of methamphetamine, 659 pounds of marijuana, five firearms, and more than $1.2 million from illegal drug transactions. Montes and the other appellants were arrested at various locations, including Chicago, Illinois and California.
The prosecution opposed the discovery motion, invoking the privileges of Evidence Code sections 1040 and 1041, the exemptions from discovery set forth in Penal Code sections 1054.6 and 1054.7, and the provisions of Evidence Code section 1042 and the procedures approved in Hobbs for in camera determination of the validity of the privilege claims. (Evid. Code, § 1042, subd. (d).) Appellants argued in reply that the Hobbs procedures apply only to search warrant affidavits, not wiretap authorization affidavits, and that the statutory privileges cannot overcome the defendant’s right to mount a meaningful challenge to the sufficiency of the wiretaps’ supporting evidence.
Order for Partial Disclosure of Redacted Documentation
On October 13, and November 8, 2006, the trial court held hearings in camera, out of the presence of appellants and their attorneys, under the authority of Evidence Code section 1042, subdivision (d), and Hobbs, ordering the transcripts of those hearings sealed. At a November 16, 2006 hearing, with all parties present, the trial court confirmed its earlier rulings that the Hobbs procedures would be applied to hear and determine the issues raised by defendants’ discovery motion (as well as an anticipated future motion to suppress the wiretap evidence). With respect to the redactions, the court denied the motion to require unredacted production of all the documentation. However, it also ruled on the basis of its in camera review of the unredacted documents that certain of the redactions were not justified, and that those portions of the unredacted documents must be produced to
Motion to Suppress Wiretap Evidence
On February 25, 2008, appellants moved in the trial court to suppress all evidence derived from the wiretaps, on grounds that the supporting affidavits were insufficient to establish the required elements of probable cause and the necessity for the wiretaps. The trial court then held another in camera hearing, again reviewing the unredacted and sealed wiretap documentation in the presence of the prosecution and the affiants, but outside of the presence of defendants and their counsel.
On October 14, 2008, after having reviewed the unredacted affidavits in camera, the court ruled that the documentation sufficiently supported each of the wiretaps and denied the motion for suppression of the wiretap evidence. Specifically, it found that the facts set forth in the wiretap applications were sufficient to support the issuing magistrates’ determinations that probable cause existed to justify the wiretaps’ issuance, and that they had acted within their discretion in ruling that necessity for the wiretaps was shown by evidence that other investigative procedures had been tried and had failed, or reasonably appeared to be either too dangerous or unlikely to succeed.
The Preliminary Hearing
Special Agent Salaiz testified at the ensuing preliminary hearing, setting forth his experience as a special agent of the California Department of Justice,
In response to cross-examination about the facts in the supporting affidavits, Special Agent Salaiz invoked the privileges of Evidence Code sections 1040 and 1041, declining to testify about when he had personally spoken with Montes, whether he had found evidence of methamphetamine production or distribution by Montes, and whether a particular conversation he was alleged to have had with Montes had been recorded.
The Judgments
After the trial court’s refusal to unseal the record of the court’s in camera hearings, and its denial of their motions to suppress the evidence derived from the wiretaps, the defendants withdrew their pleas of not guilty, entered negotiated no contest pleas to various of the charges, and were each convicted and sentenced for the crimes to which they had pleaded. These appeals followed.
DISCUSSION
Appellants argue that the procedures of Evidence Code section 1042 and the Hobbs decision apply only to search warrants, and that no California court has approved their application to wiretap authorizations. These procedures cannot be used as they were in this case, appellants contend, to evaluate the sufficiency of the grounds for authorizing the wiretaps, and even if these procedures apply to wiretaps, the wiretaps’ unredacted supporting documentation and the content of the intercepted communications should have been disclosed. Because it was not, the evidence derived from the wiretaps should have been suppressed. We conclude below that in evaluating the wiretap
“ ‘California law prohibits wiretapping,’ ” except as provided by statute. (People v. Leon (2007)
A wiretap may be ordered based upon affidavits that establish certain factual elements. These include (so far as is relevant here) probable cause to believe that an individual is committing one of a number of specified crimes (among them the drug-trafficking crimes charged in this case), and that communications concerning the crimes will be obtained by the wiretaps, and a “necessity” element consisting of cause to believe that “[n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous.” (§ 629.52.)
A trial court’s determination that the documentation supporting the wiretap authorization application satisfies these requirements is entitled to substantial deference and is reviewed for abuse of discretion. (People v. Zepeda, supra,
A. Appealability
Section 1237.5 provides that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . .” unless the defendant has sought and obtained a certificate of probable cause for the appeal. Notwithstanding that broad language, however,
B. The Trial Court Did Not Err by Denying Discovery of the Unredacted Supporting Affidavits and Refusing to Suppress the Wiretap Evidence.
In Hobbs, supra,
1. The trial court properly ruled that the privileges and procedures of Evidence Code sections 1040 through 1042 apply to wiretap authorization affidavits.
Section 629.70 provides that when a defendant has been identified as a result of a wiretap interception obtained under section 629.50 et seq., “the prosecution shall provide to the defendant a copy of all recorded interceptions from which evidence against the defendant was derived, including a copy of the court order, accompanying application, and monitoring logs.” (§ 629.70, subd. (b).) This requirement parallels the statutory mandate to disclose the statements of all defendants. (§ 1054.1; People v. Jackson, supra,
Under both federal and state law, however, these disclosures are not mandatory in all circumstances. Subdivision (d) of section 629.70 expressly authorizes the court to limit these disclosures “upon a showing of good cause.” And section 1054.7 provides that the court may deny discovery for
Evidence Code sections 1040 and 1041 codify the privileges to refuse disclosure of confidential official information and the identity of confidential informants, and Evidence Code section 1042 provides the procedures used to determine whether these privileges may be invoked to prevent disclosures in any particular case. Evidence Code section 1040 provides governmental entities with a privilege to refuse to disclose confidential official information when the public interest in preserving the confidentiality of the information “outweighs the necessity for disclosure in the interest of justice.” (Evid. Code, § 1040, subd. (b)(2).) And Evidence Code section 1041 provides that a public entity is privileged “to refuse to disclose the identity of a person who has furnished information [in confidence concerning a violation of law] . . . if . . . [f] . . . [f] (2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice . . . .” (Id., subd. (a).)
Evidence Code section 1042 contains legislative determinations that in some circumstances disclosure of neither confidential official information nor the identity of an undisclosed informant is required in order to establish the existence of reasonable cause for an arrest or search or the admissibility of evidence obtained as a result. (Evid. Code, § 1042, subds. (b), (d).) Under that procedure, when the prosecution refuses to disclose information pursuant to such a privilege, the trial court must hear the evidence in camera, if necessary. The court “shall not order disclosure” unless it then concludes from the evidence—including the evidence presented to it in camera—“that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.” (Evid. Code, § 1042, subd. (d).)
The privileges of Evidence Code sections 1040 and 1041 apply, by their terms, whenever the need for confidentiality outweighs the necessity for disclosure; their application is not confined to proceedings involving search warrants or any other particular circumstance. And although Evidence Code section 1042 expressly references its applicability in proceedings to establish the existence of reasonable cause for an arrest or search, it does not limit its
2. The trial court properly ruled that the procedures outlined in Hobbs apply not only to search warrants, but also to wiretap authorization orders.
The trial court properly ruled that the procedures outlined in the Hobbs decision with respect to search warrants are applicable also to determine the sufficiency of the support for the wiretap authorization orders and the propriety of the nondisclosures of wiretap documentation in this case.
In Hobbs, the court examined “the inherent, tension between the public need to protect the identities of confidential informants, and a criminal defendant’s right of reasonable access to information upon which to base a challenge to the legality of a search warrant.” (Hobbs, supra,
By their extension to wiretaps, the Hobbs procedures provide that the wiretaps’ supporting documentation may validly be withheld from disclosure only to the extent necessary to protect official information or an informant’s identity. (Hobbs, supra,
These are not the only principles that guide us, however. A defendant’s right to challenge a search warrant’s supporting affidavit does not automatically negate or overcome the privileges that protect official information and the identity of confidential informants. (People v. Luttenberger, supra, 50 Cal.3d at pp. 20-21.) So too, the right to disclosure is not absolute, even when nondisclosure might impair his ability to challenge the accuracy and sufficiency of an affidavit that establishes probable cause or necessity for an investigatory wiretap. “[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense, . . . taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Roviaro v. United States, supra,
It is, however, the defendant’s burden to establish the need for the information. A defendant must show more than a “ ‘mere suspicion’ ” that the information sought will prove “ ‘relevant and helpful’ ” to his defense, or that it will be “essential” to a fair determination. (U.S. v. Henderson (9th Cir. 2000)
This is wholly consistent with the procedures mandated in Evidence Code section 1041 and subdivision (d) of Evidence Code section 1042, and in Hobbs. (Evid. Code, § 1042, subd. (d) [when a party demands disclosure of informant’s identity, court conducts hearing, in camera when privilege is claimed, at which parties may present evidence on the issue of disclosure]; Hobbs, supra, 7 Cal.4th at p. 971; see Davis v. Superior Court, supra,
Because “the warrant affidavit is presumed truthful,” it is only upon “some showing that the presumptively valid warrant affidavit is questionable in some way” that a defendant can force a review of the accuracy of a search warrant affidavit’s supporting facts. (People v. Luttenberger, supra,
Moreover, even search warrants are issued only when a magistrate has been persuaded by the facts stated in the supporting affidavit that good cause justifies the intrusion on the defendant’s privacy. That circumstance justifies the rule “ ‘that where a search is made pursuant to a warrant valid on its face, the prosecution is not required to reveal the identity of the informer in order to establish the legality of the search and the admissibility of the evidence obtained as a result of it.’ ” (Hobbs, supra,
The procedures outlined in Hobbs require that even upon a showing of possible inaccuracies in the supporting affidavit’s evidence, the court’s review of the privileged material must take place in camera, out of the presence of the defendant and the defendant’s counsel. (Hobbs, supra, 7 Cal.4th at pp. 972-973.) “This procedure will assure the defendant of a judicial check on possible police misrepresentations, while preventing both unfounded fishing expeditions and inadvertent revelations of the identity of confidential police informants.” (People v. Luttenberger, supra,
These procedures have long governed challenges to the sufficiency of a search warrant’s supporting affidavits. The procedures that the Hobbs decision sets forth apply equally to the determination of a defendant’s right to disclosure of confidential information in connection with a challenge to wiretaps. The appellants have failed to demonstrate that the trial court abused its discretion by ruling that the procedures set forth in Hobbs adequately protected their rights with respect to their requests for disclosure of privileged documentation, and to their challenges to the sufficiency of the wiretap authorization orders in this case.
3., 4.
The judgment is affirmed.
Mallano, P. J., and Rothschild, J., concurred.
Appellants’ petition for review by the Supreme Court was denied January 16, 2013, S206519.
Notes
Statutory references are to the Penal Code unless otherwise specified.
Health and Safety Code section 11366.8, subdivision (a), provides for punishment of persons who possess, use, or control a “false compartment” with the intent to “store, conceal, smuggle, or transport” a controlled substance.
The Hobbs decision held that statutory requirements of disclosure of search warrant documentation are subject to an exception permitting supporting affidavits to be sealed when necessary to protect a confidential informant’s identity. (Hobbs, supra, 1 Cal.4th at pp. 963, 970-971.) Hobbs approved procedures for in camera review of the sealed materials without disclosure to defendants or their counsel, in order to determine the propriety of the government’s nondisclosure, and to safeguard the defendants’ rights while protecting the government’s legitimate interests in the information’s confidentiality. (Id. at pp. 966, 970-972.)
Unless otherwise indicated, all the appellants joined in the motions and briefs filed on Montes’s behalf, both in the trial court and in this court.
After obtaining a continuance from the trial court, appellants prosecuted unsuccessful challenges to the court’s denial of their disclosure motion, seeking writ relief in this court (Montes v. Superior Court (Feb. 7, 2007, B196108) (petn. den.), review by our Supreme Court (Montes v. Superior Court (Apr. 18, 2007, S150399) (petn. den.)), and certiorari from the United States Supreme Court (No. 07-66).
The People unsuccessfully challenged the standing of defendants other than Montes to attack the wiretaps’ validity, arguing that because Montes was the only defendant who acknowledged ownership of the target telephones or participation in intercepted communications, the others could not claim any reasonable expectation of privacy with respect to the intercepted communications. Respondent has not raised the standing issue in this court. We note, however, that section 629.72 provides that a motion to suppress wiretap evidence “shall be made, determined, and be subject to review in accordance with the procedures set forth in Section 1538.5,” and subdivision (m) of section 1538.5 provides for challenges to a search or seizure when the moving party “is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her.” (§ 1538.5, subd. (m); see People v. Davis (2008)
The court also denied a related challenge to a search warrant executed at the home of defendant Alvarez in Chicago, which apparently had been obtained using the results of the wiretap investigations.
Contending that a yes-or-no response to this final question could not possibly reveal or compromise a confidential informant’s identity, Montes’s counsel argued that no privilege could legitimately be claimed with respect to it. The court responded by recessing the hearing for a further in camera examination of Agent Salaiz out of the presence of defendants and their counsel. Following that hearing, the court informed the parties that the conversation had been recorded, but that the privilege would preclude any further questions on that subject. The court then again denied the request for disclosure of all of Montes’s intercepted statements, declining to state its reasons further in open court.
On April 2, 2010, Division Eight of this court relieved appellants Alvarez and Cruz of defaults, directing that their appeals be accepted as timely filed.
For this reason we do not consider whether the term of defendant Montes’s plea agreement expressly preserving his right to appeal from the court’s pretrial rulings, including “all the issues, discovery issues and wiretap issues, which include fourth amendment rights,” would otherwise be sufficient to confer standing to any of the defendants in this court.
Nor is the defendant limited to challenging only the sufficiency of the supporting affidavit’s recitals; a defendant may challenge not just the warrant’s facial sufficiency, but also the accuracy of the recited facts. That principle was established with respect to search warrant challenges by Franks v. Delaware (1978)
The principle stated in People v. Jackson, supra,
See footnote, ante, page 1040.